Maines v. State

• Decision Date: 12 May 1897
• Citation: 40 S.W. 490
• Parties: MAINES v. STATE.
• Court: Texas Court of Criminal Appeals

40 S.W. 490

MAINES v. STATE.

Court of Criminal Appeals of Texas.

May 12, 1897.

Appeal from district court, Falls county; S. R. Scott, Judge.

John Maines was convicted of theft, and appeals. Affirmed.

Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of the theft of a mule, and given five years in the penitentiary; hence this appeal.

Appellant was put on trial on a charge of theft of a mule from the possession of one George Green, alleged to be holding the same for one W. W. Lang, the owner thereof. Besides his plea of not guilty, appellant pleaded specially former jeopardy, to wit, that he had previously been tried on an indictment charging him with the theft of the same property, viz. the theft of a mule from the possession of George Green, holding the same for the owner thereof, W. W. Lang. The plea of former jeopardy was regular in form; the indictment setting up and showing the same transaction, and copy of the judgment showing a former conviction. The issue was joined upon this special plea, and the jury found that the same was not true. From the statement of facts it appears: That George Green had charge of the pasture of W. W. Lang, and of certain stock belonging to him. That some time in the summer of 1895 he missed out of said pasture two black mules and three horses. Witness did not know at what time said stock were taken out of said pasture, nor whether or not they were all taken at the same time. He missed them at the same time, and found a break in the pasture fence where they were evidently taken out. This property was not recovered until 1896,—about a year after they were missed. Two of the horses were recovered, having been traded by defendant to Jim Bowers, and the two mules were recovered. The state's proof showed that one of said mules was traded by defendant to Edom Anderson, and the other to Jim Myers. In the former case appellant was convicted of the theft of the mule disposed of to Anderson, and the prosecution in this case was for theft of the mule sold by defendant to Jim Myers. The circumstances would appear to indicate that all of said horses and mules were taken out of said pasture by defendant at the same time. One witness for the state, however, testified that appellant confessed to him that he made two trips in taking the stock out of the pasture, and took them at separate times, but he does not state that appellant told him that the two mules were taken at the same time, or at different times. This was about all the testimony bearing on the question of former jeopardy. The court submitted the issue to the jury as to whether or not the thefts of the two mules were separate and distinct transactions, —that is, whether they were taken at one and the same time, or at different times, —and the jury found this issue against defendant. On the trial of the case, appellant asked a charge on circumstantial evidence, as to the special plea of the defendant of former jeopardy, which was refused by the court. The court, in explaining said...